HV 


The  Constitution  and  Penal  Code 


The   Preston   School 

OF    INDUSTRY 
Waterman,  California 

Nineteen  Thirteen 


GIFT  OF 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/constitutionpenaOOpresrich 


The  Constitution 


AND 


The  Penal  Code 


OF  THE 


Preston  School  of  Industry 


Waterman,  California 
Nineteen    Thirteen 


14 


(m 


a  3 


if 


The  CONSTITUTION 


We  the  cadets  of  the  'Preston  School  of  Industry,  in  order  to 
- -DI  ...  form  a  more  perfect  government,  establish 
justice,  promote  the  general  welfare  and  se- 
cure the  blessing  of  more  privileges  and  liberty  for  ourselves, 
do  ordain  and  establish  this  Constitution  of  the  Preston  School 
of  Industry. 

ARTICLE  I 
SECTION    I 

I .  All  Legislative  powers  herein  granted  shall  be  vested  in 
a  House  of  Congress  of  the  Preston  School  of  Industry,  which 
shall  be  made  up  of  a  House  of  Representatives  and  a  Senate. 

SECTION  II 

1 .  The  Senate  shall  be  composed  of  two  members  from 
each  Company,  and  the  State  of  California  shall  have  equal  rep 
resentation,  but  no  vote. 

2.  The  House  of  Congress  shall  be  composed  of  members 
chosen  every  six  months,  by  the  cadets  of  the  several  companies, 
under  civil  or  military  government. 

3.  The  number  of  the  House  of  Representatives  shall  be 
one  to  every  twenty  members  or  fraction  thereof,  of  each  com- 
pany under  civil  or  military  government,  but  each,  either  civil  or 
military,  shall  have  at  least  one  representative  present  at  all 
meetings. 

4.  No  cadet  shall  be  a  member  of  Congress  who  shall  not 
have  been  a  citizen  of  the  Preston  School  of  Industry  for  six  (6) 
months. 

5.  The  Senate  shall  be  presided  over  by  the  Vice-President. 
He  shall  have  no  vote  except  in  case  of  tie. 


381786 


6  THE   CONSTITUTION 

6.  When  vacancies  occur  in  the  membership  of  the  Con- 
gress, from  any  company,  by  reason  of  resignation  or  any  other 
reason,  the  executive  authority  thereof  shall  temporarily  appoint 
someone  to  fill  such  vacancy. 

7.  The  House  of  Representatives  shall  choose  their  speaker 
and  other  officers,  and  shall  have  sole  power  of  impeachment. 
The  Senate  shall  have  sole  power  to  try  impeachments. 

8.  When  the  President  of  the  Preston  School  of  Industry 
is  tried,  the  Chief  Justice  shall  preside,  and  no  person  shall  be 
convicted  without  the  concurrence  of  two-thirds  (2-3)  of  the 
members  elected.  When  sitting  for  that  purpose,  they  shall  be 
under  oath  or  affirmation. 

9.  Judgments  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to  hold 
any  office  of  honor,  trust  or  profit,  under  the  Preston  School  of 
Industry,  but  the  party  convicted,  shall,  nevertheless,  be  liable  to 
indictment,  trial,   judgment   and  punishment,  according  to  law. 

SECTION  III 

I .     The  House  of  Congress  may  determine  the  rules  of  its 

proceedings,  punish  its  members  for  disorderly  behavior,  and 

with   the   concurrence   of   two-thirds    of   the   members    expel    a 

member. 

SECTION  IV 

1 .  No  Congressman  shall,  during  the  time  for  which  he 
was  elected,  be  appointed  to  any  civil  or  commissioned  military 
office,  under  the  authority  of  the  Preston  School  of  Industry, 
which  shall  have  been  created  during  such  time,  and  no  person 
holding  any  office  in  the  Preston  School  of  Industry  shall  be  a 
Congressman  during  his  continuance  in  office. 

SECTION  V 

I.  Every  bill  which  shall  have  passed  the  House  of  Con- 
gress, shall,  before  it  becomes  a  law,  be  presented  to  the 
President  of  the  Preston  School  of  Industry,  and  if  he  approve, 
he  shall  sign  it,  but  if  not  he  shall  return  it  with  his  objections, 
to  the  House  in  which  it  originated,  who  shall  enter  the 
objections  at  large  upon  their  Journal,  and  proceed  to  reconsider 
it.  If,  after  reconsideration,  two-thirds  of  both  houses  shall  agree 
to  pass  it,  it  shall  become  a  law. 


THE   CONSTITUTION  7 

2.  If  any  bill  shall  not  be  returned  by  the  President  within 
ten  (10)  days,  (Sundays  excepted)  after  it  has  been  presented  to 
him,  the  same  shall  become  a  law  in  like  manner  as  if  he  had 
signed  it,  unless  the  Congress  by  its  adjournment,  prevent  its 
return,  in  which  case  it  shall  not  become  a  law. 

SECTION  VI 

I.  The  Congress  shall  have  the  power  to  make  a  uniform 
rule  of  naturalization;  to  coin  Preston  School  of  Industry  cur- 
rency, and  to  regulate  the  value  thereof;  to  provide  for  the  punish- 
ment of  counterfeiting  the  current  coin  of  the  Preston  School  of 
Industry;  to  define  and  punish  felonies  and  offenders  against  the 
laws  of  the  Preston  School  of  Industry;  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution  the 
foregoing  powers  and  all  other  powers  vested  in  the  Government 
of  the  Preston  School  of  Industry,  or  in  any  department  or  office 
thereof,  by  this  Constitution. 

ARTICLE  II 
SECTION    I 

1.  The  executive  powers  shall  be  vested  in  the  President 
of  the  Preston  School  of  Industry.  He  shall  hold  his  office 
during  the  term  of  six  months,  and  together  with  the  Vice- 
President,  chosen  for  the  same  term,  must  have  the  following 
qualifications: 

2.  No  person  who  has  not  been  for  eight  months  a  resident 
of  the  Preston  School  of  Industry,  or  who  is  under  the  age 
of  eighteen  years  shall  be  elected  to  the  office  of  President  or 
Vice-President.  Candidates  for  this  office  must  secure  the  ap- 
proval of  the  Superintendent  of  the  School,  who  shall  vouch 
for  their  good  record  and  educational  qualifications. 

3.  In  case  of  the  removal  of  the  President  from  office,  or 
of  his  death,  resignation  or  inability  to  discharge  the  powers  and 
duties  of  said  office,  the  same  shall  be  devolved  on  the  Vice-Presi- 
dent, and  the  House  of  Congress,  may,  by  law,  provide  for  the 
case  of  removal  death,  resignation  or  inability,  both  of  the 
President  and  Vice-President,  declaring  what  officer  shall  act 
as  President,  and  such  officer  shall  act  accordingly  until  the 
disability  be  removed  or  the  President  be  elected. 


8  THE   CONSTITUTION 

4.  Before  he  enter  upon  the  execution  of  his  office,  he 
shall  take  the  following  oath  or  affirmation:  "I  do  solemnly 
swear  (or  affirm)  that  I  will  faithfully  execute  the  office  of  the 
President  of  the  Preston  School  of  Industry,  and  will,  to  the  best 
of  my  ability,  preserve,  protect  and  defend  the  Constitutions  of 
the  United -States,  the  State  of  California  and  the  Preston  School. 

5.  He  may  require  the  opinion  in  writing  of  any  principal 
officer  in  each  of  the  executive  departments  upon  any  subject 
relating  to  the  duties  of  their  respective  offices,  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offenses  committed 
against  the  Cadet  Government  of  the  Preston  School  of  Indus- 
try, except  in  cases  of  impeachments. 

6.  He  shall  have  sole  power,  with  the  advice  of  the  Senate, 
to  appoint  all  officers  of  the  Preston  School  of  Industry,  whose 
appointments  are  not  herein  otherwise  provided  for,  and  which 
shall  be  established  by  law. 

7.  He  shall  from  time  to  time,  give  the  House  of  Congress 
information  of  the  state  of  the  Cadet  Government  of  the  Preston 
School  of  Industry,  and  recommend  to  its  consideration  such 
measures  as  he  shall  deem  necessary  and  expedient.  On  extra- 
ordinary occasions  he  may  convene  the  House  of  Congress. 

8.  The  Chief  Justice  shall  be  elected  by  popular  vote,  and 
he  shall  have  the  power  to  appoint,  with  the  consent  of  Con- 
gress, his  associates. 

9.  The  President  and  Vice-President  and  all  civil  officers 
of  the  several  Companies,  under  civil  or  military  government,  of 
the  Preston  School  of  Industry,  shall  be  removed  from  office  on 
impeachment  and  conviction  of  bribery  or  other  high  crimes  and 
misdemeanors. 

ARTICLE  III 

SECTION  I 

I .  The  judicial  power  of  the  Preston  School  of  Industry 
shall  be  vested  in  one  Supreme  Court  of  three  judges.  The 
judges  of  the  Supreme  Court  shall  hold  their  offices  during  good 
behavior.  The  judicial  power  shall  extend  to  all  cases  in  law 
and  equity  arising  under  this  Constitution  and  laws  of  the  Pres- 
ton School  of  Industry. 


THE  CONSTITUTION  9 

2.  In  all  cases  before  mentioned,  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  facts,  with  such 
exceptions  and  regulations  as  the  President  shall  make.  The 
trial  of  all  crimes,  except  in  cases  of  impeachment,  shall  be  by 
jury. 

ARTICLE  IV 

SECTION  I 

I.  New  companies  may  be  admitted  into  this  Union  at  the 
discretion  of  the  House  of  Congress. 

SECTION  II 

I.  The  House  of  Congress,  when  two-thirds  of  its  members 
shall  deem  it  necessary,  shall  propose  amendments  to  this  Con- 
stitution. 

3.  This  Constitution  and  the  laws  of  the  Preston  School  of 
Industry,  which  shall  be  made  in  pursuance  thereof,  or  which 
shall  be  made  under  the  state  authority  of  the  Preston  School  of 
Industry,  shall  be  the  supreme  laws  of  the  Institution,  and  the 
iudges  in  every  company  shall  be  bound  thereby,  anything  in 
the  Constitution  and  laws  of  any  company  to  the  contrary  not- 
withstanding. 

4.  The  House  of  Congress  before  mentioned,  and  all  exe- 
cutive and  judicial  officers,  both  of  the  Preston  School  of  Industry, 
and  of  the  several  companies,  shall  be  bound  by  oath  or  affirma- 
tion to  support  the  Constitutions  of  the  United  States,  the  State 
of  California  and  the  Preston  School  of  Industry. 

5.  The  right  of  the  citizens  to  be  secure  in  their  persons, 
papers  and  effects  against  unreasonable  searches,  shall  not  be 
violated  and  no  warrants  shall  issue  but  upon  probable  cause, 
supported  by  oath  or  affirmation  and  particularly  describing  the 
place  to  be  searched  and  the  things  to  be  seized. 

6.  No  person  shall  be  subject  for  the  same  offense  to  be 
twice  placed  in  jeopardy,  nor  shall  he  be  compelled  in  any  crim- 
inal case  to  be  a  witness  against  himself. 

7.  In  all  criminal  prosecution,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
company   in   whose   court  he  is  being  tried,  and  to  be   informed 


10  THE   CONSTITUTION 

of  the  nature  and  cause  of  the  accusation,  to  be  confronted  with 
witnesses  against  him  ;  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor  and  to  have  the  assistance  of  counsel  for 
his  defense. 

8.  The  right  of  the  citizens  of  the  Preston  School  of  Indus- 
try to  vote,  shall  not  be  denied  or  abridged  by  the  Preston 
School  of  Industry,  or  by  any  company  on  account  of  race  or 
color. 

9.  The  officers  provided  for  in  this  Constitution  (the  Presi- 
dent's Cabinet)  shall  be  elected  by  popular  vote  and  shall  be  as 
follows:  President,  Vice-President,  Chief  Justice,  Attorney-Gen- 
eral, Secretary  of  State  and  Treasury  and  Secretary  of  Military 
Affairs. 


Some  Constitutional  Provisions 


ARTICLE  I 

No  person  shall  be  rendered  incompetent  to  be  a  witness  or 
juror  on  account  of  his  opinions  on  matters  of  religious  belief. 

ARTICLE  II 

The  right  of  trial  by  jury  shall  be  secured  to  all,  and  remain 

inviolate.     A  trial  by  jury  may  be  waived   in  all  criminal  cases 

not  amounting  to  felony,  by   consent  of   both   parties,   expressed 

in  open  court. 

ARTICLE  III 

Offenses  heretofore  required  to  be  prosecuted  by  indictment, 
shall  be  prosecuted  by  information,  after  examination  and  com- 
mitment by  a  magistrate,  or  by  indictment,  with  or  without  such 
examination  and  commitment,  as  may  be  prescribed  by  law. 

ARTICLE  IV 

Indictments  found,  or  information  laid  shall  be  tried  where 
the  party  alleged  to  be  libeled  resided  at  the  time,  unless  the 
place  of  trial  shall  be  changed  for  good  cause. 

ARTICLE  V 

In  criminal  prosecution  in  any  court  whatever,  the  party 
accused  shall  have  the  right  to  a  speedy  and  public  trial;  to  have 
the  process  of  the  court  to  compel  the  attendance  of  witnesses 
in  his  behalf,  and  to  appear  and  defend  in  person  and  with 
counsel.  No  person  shall  be  twice  put  in  jeopardy  for  the  same 
offense;  nor  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself;  nor  be  deprived  of  liberty  or  property,  with- 
out due  process  of  law.  The  Legislature  shall  have  power  to 
provide  for  the  taking,  in  the  presence  of  the  party  accused  and 
his  counsel,  of  depositions  of  witnesses,  in  criminal  cases,  other 
than  cases  of  homicide,  where  there  is  reason  to  believe  that  the 
witness,  from  inability  or  other  cause,  will  not  attend  at  the  trial. 

ARTICLE  VI 

No  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the 
obligations  of  contracts,  shall  ever  be  passed. 


12  CONSTITUTIONAL  PROVISIONS 

ARTICLE  VII 

No  person  shall  be  convicted  of  treason,  unless  on  the  evi- 
dence of  two  witnesses  to  the  same  overt  act,  or  confession  in 
open  court. 

ARTICLE  VIII 

The  House  of  Representatives  shall  have  the  sole  power  of 
impeachment,  and  all  impeachments  shall  be  tried  by  it.  When 
sitting  for  that  purpose,  the  Representatives  shall  be  on  oath  or 
affirmation  and  no  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  elected. 

ARTICLE  IX 

No  person  convicted  of  the  embezzlement  or  defalcation  of 
the  public  funds  of  the  United  States,  or  of  any  State,  or  of  any 
county  or  municipality  therein,  shall  ever  be  eligible  to  any  office 
of  honor,  trust,  or  profit  under  this  State,  and  the  Legislature 
shall  provide,  by  law,  for  the  punishment  of  embezzlement  or  de- 
falcation as  a  felony. 

ARTICLE  X 

The  Superior  Courts  shall  have  original  jurisdiction  in  all 
criminal  cases  amounting  to  felony,  and  cases  of  misdemeanor 
not  otherwise  provided  for.  They  shall  have  appellate  jurisdic- 
tion in  such  cases  arising  in  justices'  and  other  inferior  courts,  in 
their  respective  counties,  as  may  be  prescribed  by  law.  Said 
courts  and  their  judges  shall  have  power  to  issue  writs  of  habeas 
corpus,  on  petition  by,  or  on  behalf  of  any  person  in  actual  cus- 
tody, in  their  respective  counties. 

ARTICLE  XI 

Judges  shall  not  charge  juries  with  respect  to  matters  of  fact, 
but  may  state  the  testimony  and  declare  the  law. 

ARTICLE  XII 

Every  person  shall  be  disqualified  from  holding  any  office 
of  profit  in  this  State  who  shall  have  been  convicted  of  having 
given  or  offered  a  bribe  to  procure  his  election  or  appointment. 


AN  ACT  TO  ESTABLISH  A  PENAL  CODE 


<£HE  CADETS  OF 
The  Preston  School  of  Industry, 

In  Townmeeting  Assembled,  do  Enact  as  Follows: 


TITLE  OF  THE  ACT 


/.  This  Act  Shall  Be  Known  as  the  PENAL  CODE 
of  the  PRESTON  SCHOOL  OF  INDUSTRY, 
California,  and  T)ivided  into  two  Parts  as  Follows  : 


I.        OF    CRIMES    AND     PUNISHMENTS 
2.        OF    CRIMINAL    PROCEEDURE 


Preliminary  Provisions 


1.  This  Code  takes  effect  at  twelve  o'clock,  noon,  on  the 
eighteenth  day  of  October,   1913. 

2.  No  part  of  it  is  retroactive,  unless  expressly  so  declared. 

3.  The  rule  of  the  common  law,  that  penal  statutes  are  to 
be  strictly  construed,  has  no  application  to  this  Code.  All  its 
provisions  are  to  be  construed  according  to  the  fair  import  of 
their  terms,  with  a  view  to  effect  its  object  and  to  promote  justice. 

4.  This  Code  does  not  effect  any  power  conferred  by  law 
upon  any  court-martial,  or  other  military  authority  or  officer,  to 
impose  or  inflict  punishment  upon  offenders  ;  nor  any  power 
conferred  by  law  upon  any  public  body,  tribunal,  or  officer,  to 
impose  or  inflict  punishment  for  a  contempt. 

5.  The  various  sections  of  this  Code  which  declare  that 
evidence  obtained  upon  the  examination  of  a  person  as  a  wit- 
ness cannot  be  received  against  him  in  any  criminal  proceedings, 
do  not  forbid  such  evidence  being  proved  against  such  person 
upon  any  proceedings  founded  upon  a  charge  of  perjury  com- 
mitted in  such  examination. 

6.  A  crime  or  public  offense  is  an  act  committed  or  omitted 
in  violation  of  a  law  forbidding  or  commanding  it,  and  to  which 
is  annexed,  upon  conviction,  either  of  the  following  punishments: 

First:  Any  reasonable  punishment  ordered  by 
Court  and  now  usual  in  this  School. 

Second:  Imprisonment 

Third:       Fine 

Fourth:     Removal  from  office;  or 

Fifth:  Disqualification  to  hold  and  enjoy  any  of- 
fice of  honor,  trust,  or  profit  in  this  School. 

7.  Crimes  are  divided  into  : 

First:         Felonies;  and, 
Second:  Misdemeanors. 

8.  In  every  crime  or  public  offense,  there  must  exist  a 
union,  or  joint  operation  of  act  and  intent,  or  criminal  negli- 
gence. 


PART  ONE 


Of  CRIMES  and  PUNISHMENTS 


The  PENAL  CODE 


Title  II 


1.  All  persons  concerned  in  the  commission  of  a  crime, 
whether  it  be  felony  or  misdemeanor,  and  whether  they  direct- 
ly commit  the  act  constituting  the  offense  or  aid  and  abet  in  its 
commission,  or  not  being  present,  have  advised  and  encouraged 
its  commissions,  are  principals  in  any  crime  so  committed. 

2.  All  persons  who,  after  full  knowledge  that  a  felony  has 
been  committed,  conceal  it  from  the  magistrate,  or  harbor  and 
protect  the  person  charged  with  or  convicted  thereof,  are  acces- 
sories. 

Title  V 


OF  CRIMES  BY  AND  AGAINST  THE  EXECUTIVE 
POWER  OF  THE  STATE 

1.  Every  person  who  exercises  any  function  of  a  public 
office  without  taking  the  oath  of  office,  or  without  giving  the  re- 
quired bond,  is  guilty  of  a  misdemeanor. 

2.  Every  person  who  gives  or  offers  any  bribe  to  any  execu- 
tive officer  of  this  School  with  intent  to  influence  him  in  respect  to 
any  act,  decision,  vote,  opinion,  or  other  proceeding  as  such 
officer,  is  punishable  by  imprisonment  in  Company  G  for  not 
less  then  one  nor  more  than  six  months,  and  is  disqualified  from 
holding  any  office  in  this  School. 

3.  Every  executive  officer,  or  person  elected  or  appointed 
to  an  executive  office,  who  asks,  receives  or  agrees  to  receive, 
any  bribe,  upon  any  agreement  or  understanding  that  his  vote, 
opinion,  or  action  upon  any  matter  then  pending,  or  which  may 
be  brought  before  him  in  his  official  capacity,  shall  be  influenced 
thereby,  is  punishable  by  imprisonment  in  Company  G  for  not 
less  than  one  nor  more  than  six  months  and  in  addition  thereto 
forfeits  his  office,  and  is  forever  disqualified  from  any  office  in 
this  School. 


20  THE  PENAL  CODE 

4.  Every  person  who  attempts,  by  means  of  any  threats  or 
violence,  to  deter  or  prevent  an  executive  officer  from  performing 
any  duty  imposed  upon  such  officer  by  law,  or  who  knowingly 
resists,  by  the  use  of  force  or  violence,  such  officer,  in  the  per- 
formance of  his  duty,  is  punishable  by  fine  not  exceeding  fif- 
teen dollars  or  imprisonment  in  Company  F  not  exceeding  five 
months. 

5.  Every  public  officer  who,  for  any  gratuity  or  reward, 
appoints  another  person  to  a  public  office,  or  permits  another 
person  to  exercise  or  discharge  any  of  the  duties  of  his  office,  is 
punishable  by  a  fine  not  exceeding  $10  and  in  addition  thereto, 
forfeits  his  office,  and  is  forever  disqualified  from  holding  any 
office  in  this  School. 

6.  Every  person  who  willfully  and  knowingly  intrudes  him- 
self into  any  public  office  to  which  he  has  not  been  elected  or 
appointed,  and  every  person  who,  having  been  an  executive 
officer,  willfully  exercises  any  of  the  functions  of  his  office  after 
his  term  has  expired,  and  a  successor  has  been  elected  or  appoint- 
ed and  has  qualified,  is  guilty  of  a  misdemeanor. 

7.  Every  officer  whose  office  is  abolished  by  law  or  who,  after 
the  expiration  of  the  time  for  which  he  may  be  appointed  or  elect- 
ed or  after  he  has  resigned,  or  been  legally  removed  from  office, 
willfully  and  unlawfully  withholds  or  detains  from  his  successor, 
or  other  person  entitled  thereto,  the  records,  papers,  documents 
or  other  writing  appertaining  or  belonging  to  his  office,  or  muti- 
lates, destroys  or  take  away  the  same,  is  punishable  by  imprison- 
ment in  Company  G  for  not  less  than  one  nor  more  than  six 
months. 

Title  VII 


CHAPTER  I 

BRIBERY  AND  CORRUPTION 

I .     Every  person  who  gives  or  offers  to  give  a  bribe  to   any 

judicial  officer,    juror,  referee,  arbitrator,  or  umpire,  or  to  any 

person  who  may  be  authorized  by  law  to  hear  or  determine  any 

question  or    controversy,  with  intent  to  influence  his  vote,   opin- 


THE  PENAL  CODE  21 

ion  or  decision  upon  any  matter  or  question  which  is  or  may  be 
brought  before  him  for  decision,  is  punishable  by  imprisonment 
in  Company  G  for  not  less  than  one  nor  more  than  six  months. 

2.  Every  judicial  officer,  juror,  referee,  arbitrator,  or  umpire 
and  every  person  authorized  by  law  to  hear  or  determine  any 
question  or  controversy,  who  asks,  receives,  or  agrees  to  receive 
any  bribe,  upon  any  agreement  or  understanding  that  his  vote, 
opinion  or  decision  upon  any  matter  or  question  which  is  or  may 
be  brought  before  him  for  decision,  shall  be  influenced  thereby 
is  punishable  by  imprisonment  in  Company  G  for  not  less  than 
one  month  nor  more  than  ten  months. 

3.  Every  person  who  corruptly  attempts  to  influence  a  juror, 
or  any  person  summoned  or  drawn  as  a  juror,  or  chosen  as  an 
arbitrator,  or  umpire,  or  appointed  a  referee,  in  respect  to  his 
verdict  in,  or  decision  of  any  cause  or  proceeding,  pending  or 
about  to  be  brought  before  him,  either, 

(a)  By  means  of  any  communication,  oral  or  written, 
had  with  him  except  in  the  regular  course  of  pro- 
ceedings ; 

(b)  By  means  of  any  book,  paper,  or  instrument  ex- 
hibited, otherwise  than  in  the  regular  course  of  pro- 
ceedings ; 

(c)  By  means  of  any  threat,  intimidation,  persuasion,  or 
entreaty  ;  or, 

(d)  By  name  of  any  promise,  or  assurance  of  any 
pecuniary  or  other  advantage; 

Is  punishable  by  fine  not  exceeding  eighteen  dol- 
lars, or  by  imprisonment  in  Company  G  not  ex- 
ceeding six  months. 

4.  Every  juror,  or  person  drawn  or  summoned  as  a  juror, 
or  chosen  arbitrator  or  umpire,  or  appointed  referee,  who  either, 

(a)  Makes  any  promise  or  agreement  to  give  a  verdict 
or  decision  for  or  against  any  party;  or 

(b)  Willfully  and  corruptly  permits  any  communication 
to  be  made  to  him  or  receives  any  book,  paper,  in- 
strument or  information  relating  to  any  cause  or 
matter,  pending  before  him,  except  according  to  the 
regular  course  of  proceedings  ; 


22  THE  PENAL  CODE 

Is  punishable  by  fine  not  exceeding  fifteen  dollars,  or  by 
imprisonment  in  Company  G  not  exceeding  six  months. 

CHAPTER  II 

RESCUES 

1.  Every  person  who  willfully  injures  or  destroys,  or  takes 
or  attempts  to  take,  or  assists  any  person  in  taking  or  attempting 
to  take,  from  the  custody  of  any  officer  or  person,  any  personal 
property  which  such  officer  or  person  has  in  charge  under  any 
process  of  law,  is  guilty  of  a  misdemeanor. 

CHAPTER  IV 

FORGING,  STEALING,  MUTILATING,  AND  FALSIFYING  JUDICIAL 
AND  PUBLIC  RECORDS  AND  DOCUMENTS 

1 .  Every  officer  having  the  custody  of  any  record,  map  or 
book,  or  any  paper  or  proceeding  of  any  court,  filed  or  deposited 
in  any  public  office,  or  placed  in  his  hands  for  any  purpose,  who 
is  guilty  of  stealing,  willfully  destroying,  mutilating,  defacing, 
altering  or  falsifying,  removing  or  secreting  the  whole  or  any 
part  of  such  record,  map,  book,  paper,  or  proceeding,  or  who 
permits  any  other  person  to  do  so,  is  punishable  by  imprison- 
ment in  Company  G  for  not  less  than  one  nor  more  than  ten 
months. 

2.  Every  person  who  knowingly  procures  or  offers  any 
false  or  forged  instrument  to  be  filed,  registered,  or  recorded  in 
any  public  office  within  this  School,  which  instrument,  if  genuine, 
might  be  filed,  or  registered,  or  recorded  under  any  law  of  this 
School,  is  guilty  of  a  felony. 

CHAPTER  V 

PERJURY  AND  SUBORDINATION  OF  PERJURY 

1 .  Every  person,  who,  having  taken  an  oath  that  he  will  tes- 
tify, declare,  depose,  or  certify  truly  before  any  competent  tribu- 
nal, officer,  or  person,  in  any  of  the  cases  in  which  such  an 
oath  may  by  law  be  administered,  willfully  and  contrary  to  such 
oath  states  as  true  any  material  matter  which  he  knows  to  be 
false,  is  guilty  of  perjury. 


THE  PENAL  CODE  23 

2.  The  term  "oath,"  as  used  in  the  last  section,  includes  an 
affirmation,  and  every  other  mode  authorized  by  law  of  attesting 
the  truth  of  that  which  is  stated. 

3.  So  much  of  an  oath  of  office  as  relates  to  the  future  per- 
formance of  official  duties  is  not  such  an  oath  as  is  intended  by 
the  two  preceeding  sections. 

4.  It  is  no  defense  to  a  prosecution  for  perjury  that  the 
oath  was  administered  or  taken  in  an  irregular  manner. 

5.  It  is  no  defense  to  a  prosecution  for  perjury  that  the 
accused  was  not  competent  to  give  the  testimony,  deposition,  or 
certificate  of  which  falsehood  is  alleged.  It  is  sufficient  that  he 
did  give  such  testimony  or  make  such  deposition  or  certificate. 

6.  It  is  no  defense  to  a  prosecution  for  perjury  that  the 
accused  did  not  know  the  materiality  of  the  false  statement  made 
by  him  ;  or  that  it  did  not,  in  fact,  affect  the  proceeding  in  or  for 
which  it  was  made.  It  is  sufficient  that  it  was  material,  and 
might  have  been  used  to  affect  such  proceedings. 

7.  The  making  of  a  deposition  or  certificate  is  deemed  to 
be  complete,  within  the  provisions  of  this  chapter,  from  the  time 
when  it  is  delivered  by  the  accused  to  any  other  person,  with 
the  intent  that  it  be  uttered  or  published  as  true. 

8.  An  unqualified  statement  of  that  which  one  does  not 
know  to  be  true  is  equivalent  to  a  statement  of  that  which  one 
knows  to  be  false. 

9.  Perjury  is  punishable  by  imprisonment  in  Company 
G  for  not  less  than  one  nor  more  than  ten  months. 

10.  Every  person  who  willfully  procures  another  person  to 
commit  perjury  is  guilty  of  subordination  of  perjury,  and  is 
punishable  in  the  same  manner  as  he  would  be  if  personally 
guilty  of  the  perjury  so  procured. 

I  1 .  Every  person,  who,  by  willful  perjury,  or  subordination 
of  perjury,  procures  the  conviction  and  punishment  of  any  inno- 
cent person,  is  punishable  by  imprisonment  not  exceeding  one 
year. 


24  THE  PENAL  CODE 

CHAPTER  VI 

FALSIFYING  EVIDENCE 

1.  Every  person,  who,  upon  any  trial,  proceeding,  inquiry, 
or  investigation  whatever,  authorized  or  permitted  by  law,  offers 
in  evidence,  as  genuine  or  true,  any  book,  paper,  document, 
record,  or  other  instrument  in  writing,  knowing  the  same  to  have 
been  forged,  or  fraudulently  altered  or  antedated,  is  guilty  of  a 
felony. 

2.  Every  person  who  willfully  prevents  or  dissuades  any 
persons  who  is  or  may  become  a  witness,  from  attending  upon 
any  trial,  proceeding,  or  inquiry,  authorized  by  law,  is  guilty  of 
a  misdemeanor. 

3.  Every  person  who  gives,  or  offers,  or  promises  to  give 
to  any  witness,  or  person,  about  to  be  called  as  a  witness,  any 
bribe,  upon  any  understanding  or  agreement  that  the  testimony 
of  such  witness  shall  be  thereby  influenced,  or  who  attempts  by 
any  other  means  fraudulently  to  induce  any  person  to  give  false 
or  withhold  true  testimony,  is  guilty  of  a  felony. 

4.  Every  person  who  is  a  witness,  or  is  about  to  be  called 
as  such,  who  receives  or  offers  to  receive,  any  bribe,  upon  any 
understanding  that  his  testimony  shall  be  influenced  thereby,  or 
that  he  will  absent  himself  from  the  trial,  or  proceeding,  upon 
which  his  testimony  is  required,  is  guilty  of  a  felony. 

CHAPTER  VII 

OTHER  OFFENSES  AGAINST  PUBLIC  JUSTICE 

1.  Every  sheriff,  keeper  of  a  jail,  constable,  or  other  peace 
officer,  who  willfully  refuses  to  receive  or  arrest  any  person 
charged  with  a  criminal  offense,  is  punishable  by  a  fine  not  ex- 
ceeding fifteen  dollars,  or  imprisonment  in  Company  F  for  not 
exceeding  five  months. 

2.  Every  public  officer  or  other  person,  having  arrested 
any  person  upon  a  criminal  charge,  who  willfully  delays  to  take 
such  person  before  a  magistrate  having  jurisdiction,  to  take  his 
examination,  is  guilty  of  a  misdemeanor. 


THE  PENAL  CODE  25 

3.  Every  person  who  willfully  resists,  delays  or  obstructs 
any  public  officer,  in  the  discharge  or  attempt  to  discharge  any 
duty  of  his  office,  when  no  other  punishment  is  prescribed,  is 
punishable  by  fine  not  exceeding  fifteen  dollars,  or  imprison- 
ment in  Company  G  not  exceeding  five  months. 

4.  Every  attorney  who,  whether  as  attorney  or  as  counsel- 
lor, either, 

(a)  Is  guilty  of  any  deceit  or  collusion,  or  consents  to  any 
deceit  or  collusion,  with  intent  to  deceive  the  court 
or  any  party  ;  or 

(b)  Willfully  delays  his  client's  suit  with  a  view  to  his 
own  gain ;  or 

(c)  Willfully  receives  any  money  or  allowance  for  or 
on  account  of  any  money  which  he  has  not  laid  or 
become  answerable  for; 

Is  guilty  of  a  misdemeanor. 

5.  Every  grand  juror,  who,  with  knowledge  that  a  challenge 
interposed  against  him  by  a  defendant  has  been  allowed,  is 
present  at,  or  takes  part,  or  attempts  to  take  part  in  consideration 
of  the  charge  against  the  defendant,  who  interposed  the  chal- 
lenge, or  the  deliberations  of  the  grand  jury  thereon,  is  guilty 
of  a  misdemeanor. 

6.  Every  grand  juror,  district  attorney,  clerk,  judge,  or  other 
officer,  who,  except  by  issuing  or  in  executing  a  warrant  of 
arrest,  willfully  discloses  the  fact  of  a  presentment  or  an  indict- 
ment having  been  made  for  a  felony,  until  the  defendant  has 
been  arrested,  is  guilty  of  a  misdemeanor. 

7.  Every  grand  juror  who,  except  when  required  by  a  court, 
willfully  discloses  any  evidence  adduced  before  the  grand  jury, 
or  anything  which  he  himself,  or  any  other  member  of  the  grand 
jury,  may  have  said,  or  in  what  manner  he  or  any  other  grand 
juror  may  have  voted  on  a  matter  before  them,  is  guilty  of  a 
misdemeanor. 


26  THE  PENAL  CODE 

Title  VIII 


CHAPTER  IX 

ASSAULT  AND  BATTERY 

1 .  An  assault  is  an  unlawful  attempt,  coupled  with  a  pres- 
ent ability,  to  commit  a  violent  injury  on  the  person   of  another. 

2.  An  assault  is  punishable  by  fine  not  exceeding  thirty-six 
dollars,  or  by  imprisonment  in  Company  F  not  exceeding  twelve 
months  or  by  both. 

3.  A  battery  is  any  willful  and  unlawful  use  of  force  or 
violence  upon  the  person  of  another. 

4.  Every  person  who  commits  an  assault  upon  the  person 
of  another  with  a  deadly  weapon  or  instrument,  or  by  any  means 
or  force  likely  to  produce  great  bodily  injury,  is  punishable  by 
imprisonment  in  Company  G,  or  in  Company  F,  not  exceeding 
one  year,  or  by  fine  not  exceeding  thirty-six  dollars  or  by   both. 

Title  IX 


CHAPTER  VII 

OF  CRIMES  AGAINST  RELIGION,  CONSCIENCE,  AND  OTHER 
OFFENCES  AGAINST  GOOD  MORALS 

1 .  Every  person  who  willfully  disturbs  or  disquiets  any 
assemblage  of  people  met  for  religious  worship,  by  noise,  pro- 
fane discourse,  rude  or  indecent  behavior,  or  by  any  unneces- 
sary noise,  either  within  the  place  where  such  meeting  is  held 
or  so  near  it  as  to  disturb  the  order  and  solemnity  of  the  meet- 
ing, is  guilty  of  a  misdemeanor. 

CHAPTER  VIII 

INDECENT  EXPOSURE  AND  OBSCENE  EXHIBITIONS 

1 .     Every  person  who  willfully  and  lewdly,  either: 
(a)     Exposes  his  person  or  the  private  parts  thereof,  in 
any  public  place,  or  in  any   place  where  are  present 
other  persons  to  be  offended  or  annoyed  thereby;  or 


THE  PENAL  CODE  27 

(b)  Procuies,  counsels,  or  assists  any  person  so  to  ex 
pose  himself,  or  to  take  part  in  any  model  art  exhi- 
bition, or  to  make  any  other  exhibition  of  himself,  to 
public  view,  or  to  the  view  of  any  number  of  persons, 
such  as  is  offensive  to  decency,  or  is  adapted  to  ex- 
cite to  vicious  or  lewd  thoughts  or  acts;  or 

(c)  Writes,  composes,  stereotypes,  prints,  publishes,  sells, 
distributes,  keeps  for  sale,  or  exhibits  any  obscene  or 
indecent  writing,  paper  or  books;  or  designs,  copies, 
draws,  engraves,  paints,  or  otherwise  prepares  any 
obscene  or  indecent  picture  or  print;  or  models,  cuts, 
casts,  or  otherwise  makes  any  obscene  or  indecent 
figure;  or 

(d)  Writes,  composes,  publishes,  any  notice  or  adver- 
tisement of  any  such  writing,  paper,  book,  picture, 
print  or  figure;  or 

(e)  Sings  any  lewd  or  obscene  song,  ballad,  or  other 
words,  in  any  public  place,  or  in  any  place  where 
there  are  persons  present  to  be  annoyed  thereby,  is 
guilty  of  a  misdemeanor. 

Title  XIII 
CHAPTER  V 

LARCENY 

I.  Larceny  is  the  felonious  stealing,  taking,  carrying,  leading 
or  driving  awaj'  the  personal  property  of  another. 

2.  One  who  finds  lost  property,  under  circumstances  which 
give  him  knowledge  of  or  means  of  inquiry  as  to  the  true  owner, 
and  who  appropriates  such  property  to  his  own  use,  or  to  the 
use  of  another  person  not  entitled  thereto,  without  first  making 
reasonable  and  just  efforts  to  find  the  owner  and  restore  the 
property  to  him,  is  guilty  of  larceny. 

3.  Larceny  is  divided  into  two  degrees,  the  first  of  which  is 
termed  grand  larceny;  the  second,  petit  larceny. 

4.  Grand  Larceny  is  larceny  committed  in  either  of  the 
following  cases: 


28  THE  PENAL  CODE 

(a)  When  the  property  taken  is  of  a  value  exceeding 
one  dollar. 

(b)  When  the  property  is  taken  from  the  person  of 
another. 

(c)  When  the  property  taken  is  a  horse,  mare,  gedling 
cow,  steer,  bull,  calf,  mule,  jack,  jenny,  goat,  sheep, 
or  hog. 

5.  Larceny  in  other  cases  is  petit  larceny. 

6.  Grand  Larceny  is  punishable  by  imprisonment  in  Com- 
pany G  for  not  less  then  one  nor  more  then  ten  months. 

7.  Petit  larceny  is  punishable  by  fine  not  exceeding  eigh- 
teen dollars,  or  by  imprisonment  in  Company  F  not  exceeding 
six  months,  or  both. 

8.  If  the  thing  stolen  consists  of  any  evidence  of  debt,  or 
other  written  instrument,  the  amount  of  money  due  thereupon,  or 
secured  to  be  paid  thereby,  and  remaining  unsatisfied,  or  which 
in  any  contingency  might  be  collected  thereon,  or  the  value  of  the 
property  the  title  to  which  is  shown  thereby,  or  the  sum  which 
might  be  recovered  in  the  absence  thereof,  is  the  value  of  the 
thing  stolen. 

CHAPTER  VII 

EXTORTION 

1 .  Extortion  is  the  obtaining  of  property  from  another,  with 
his  consent,  induced  by  a  wrongful  use  of  force  or  fear,  or  under 
color  of  official  right. 

2.  Fear,  such  as  will  constitute  extortion,  may  be  induced 
by  a  threat,  either: 

(a)  To  do  an  unlawful  injury  to  the  person  or  property 
of  the  individual  threatened,  or  to  any  relative  of 
his,  or  member  of  his  family;  or, 

(b)  To  accuse  him,  or  any  relative  of  his,  or  member 
of  his  family,  of  any  crime;  or, 

(c)  To  expose,  or  impute  to  him  or  them  any  deform- 
ity or  disgrace;  or, 

(d)  To  expose  any  secret  affecting  him  or  them. 

3.  Every  person  who  extorts  any  money  or  other  property 
from  another,  under  circumstances  not  amounting  to  robbery,  by 


THE  PENAL  CODE  29 

means  of  force,  or  any  threat,  such  as  is  mentioned  in  the  pre- 
ceding section,  is  punishable  by  imprisonment  in  Company  G 
not  exceeding  five  months. 

4.  Every  person  who  commits  any  extortion  under  color  of 
official  right,  in  cases  for  which  a  different  punishment  is  not  pre- 
scribed in  this  Code,  is  guilty  of  a  misdemeanor. 

5.  Every  person  who,  by  any  extortionate  means,  obtains 
from  another  his  signature  to  any  paper  or  instrument,  whereby, 
if  such  signature  were  freely  given  any  property  would  be  trans- 
ferred, or  any  debt,  demand,  charge,  or  right  of  action  created, 
is  punishable  in  the  same  manner  as  if  the  actual  delivery  of 
such  debt,  demand,  charge,  or  right  of  action  were  obtained. 

6.  Every  person,  who,  with  intent  to  extort  any  money  or 
other  property  from  another,  sends  or  delivers  to  any  person,  any 
letter  or  other  writing,  whether  subscribed  or  not,  expressing  or 
implying,  or  adapted  to  imply,  any  threat  such  as  is  specified  in 
section  two,  is  punishable  in  the  same  manner  as  if  such  money 
or  property  were  actually  obtained  by  means  of  such  threat. 

7.  Every  person  who  unsuccessfully  attempts,  by  means  of 
any  verbal  threat,  such  as  is  specified  in  section  two,  to  extort 
money  or  other  property  from  another,  is  guilty  of  a  misde- 
meanor. 

Title  XIV 


MALICIOUS   MISCHIEF 

1 .  Every  person  who  willfully  commits  any  trespass  by 
putting  up,  affixing,  fastening,  printing,  or  painting  upon  any 
property  belonging  to  the  State,  or  to  any  city,  county,  town  or 
village,  or  dedicated  to  the  public,  or  upon  any  property  of  any 
person,  without  license  from  the  owner,  any  notice,  advertise- 
ment, or  designation  of  or  any  name  for  any  commodity, 
whether  for  sale  or  otherwise,  or  any  picture,  sign  or  device 
intended    to  call  attention   thereto,  is  guilty   of  a   misdemeanor. 

2.  Every  person  who  maliciously  injures  or  destroys  any 
standing  crops  of  grain,  cultivated  fruits  or  vegetables,  the  pro- 
perty of    another,  in    any  case  for  which    a   punishment    is    not 


30  THE  PENAL  CODE 

otherwise  prescribed  by  this  Code,  is  guilty  of  a  misdemeanor. 

3.  Every  person  who  maliciously  mutilates,  tears,  defaces, 
obliterates,  or  destroys  any  written  instrument  the  property  of 
another,  the  false  making  of  which  would  be  forgery,  is  punish- 
able by  imprisonment  in  Company  G  for  not  less  than  one  nor 
more  than  five  months. 

4.  Every  person  who  willfully  opens  or  reads,  or  causes  to 
be  read,  any  sealed  letter  not  addressed  to  himself,  without  being 
authorized  so  to  do,  either  by  the  writer  of  such  letter  or  by  the 
person  to  whom  it  is  addressed,  and  every  person  who,  without 
the  like  authority,  publishes  any  of  the  contents  of  such  letter, 
knowing  the  same  to  have  been  unlawfully  opened,  is  guilty  of 
a  misdemeanor. 


PART  TWO 


Of  CRIMINAL  PROCEDURE 


THE  PENAL  CODE  33 

Preliminary  Provisions 


1.  No  person  can  be  punished  for  a  public  offense,  except 
upon  a  legal  conviction  in  a  court  having  jurisdiction  thereof. 

2.  Every  public  offense  must  be  prosecuted  by  indictment 
or  information,  except, 

(a)  Where  proceedings  are  had  for  the  removal  of  civil 
officers  of  the  School. 

(b)  Offenses  tried  in  Justices  and  Police  Courts. 

3.  The  proceedings  by  which  a  party  charged  with  a  public 
offense  is  accused  and  brought  to  trial  and  punishment,  is  known 
as  a  criminal  action. 

4.  A  criminal  action  is  prosecuted  in  the  name  of  the  peo- 
ple of  the  Preston  School  of  Industry,  as  a  party,  against  the  per- 
son charged  with  the  offense. 

5.  The  party  prosecuted  in  a  criminal  action  is  designated 
in  this  Code  as  the  defendant. 

6.  In  a  criminal  action  the  defendant  is  entitled 

(a)  To  .a  speedy  and  public  trial. 

(b)  To  be  allowed  counsel  as  in  civil  actions,  or  to 
appear  and  defend  in  person  and  with  counsel. 

(c)  To  produce  witnesses  on  his  behalf,  and  to  be  con- 
fronted with  the  witnesses  against  him,  in  the  pres- 
ence of  the  court,  except  that  where  the  charge  has 
been  preliminary  examined  before  a  committing 
magistrate,  and  the  testimony  taken  down  by  ques- 
tion and  answer  in  the  presence  of  the  defendant, 
who  has,  either  in  person  or  by  counsel  cross- 
examined  or  had  an  opportunity  to  cross-examine 
the  witness;  or  where  the  testimony  of  a  witness  on 
the  part  of  the  people,  who  is  unable  to  give  security 
for  his  appearance,  has  been  taken  conditionally  in 
the  like  manner  in  the  presence  of  the  defendant, 
who  has,  either  in  person  or  by  counsel,  cross- 
examined  or  had  an  opportunity  to  cross-examine  the 
witness,  the  deposition  of  such  witness  may  be  read, 


34  THE  PENAL  CODE 

upon  its  being  satisfactorily  shown  to  the  court  that 
he  is  dead  or  insane,  or  cannot  with  due  diligence 
be  found  within  the  School. 

7.  No  person  can  be  subjected  to  a  second  prosecution  for 
a  public  offense  for  which  he  has  once  been  prosecuted  and 
convicted  or  acquitted. 

8.  No  person  can  be  compelled,  in  a  criminal  action,  to  be 
a  witness  against  himself;  nor  can  a  person  charged  with  a  pub- 
lic offense,  be  subjected,  before  conviction,  to  any  more  restraint 
than  is  necessary  for  his  detention  to  answer  the  charge. 

9.  No  person  can  be  convicted  of  a  public  offense,  unless 
by  the  verdict  of  a  jury,  accepted  and  recorded  by  the  court,  or 
upon  a  plea  of  guilty  or  upon  a  judgment  of  a  court,  a  jury 
having  been  waived,  in  a  criminal  case  not  amounting  to  felony. 

Title  II 
CHAPTER  I 

OF  IMPEACHMENTS 

1.  The  president,  vice-president,  governor,  lieutenant-gov- 
ernor, secretary  of  state  and  treasurer,  attorney-general,  secretary 
of  military  affairs,  chief  justice,  associate  justices  of  the  supreme 
court,  and  judges  of  the  superior  courts  are  liable  to  impeach- 
ment for  any  misdemeanor  in   office. 

2.  All  impeachments  must  be  by  resolution  adopted, 
originated  in,  and  conducted  by  managers  elected  by  the  Assem- 
bly, who  must  prepare  articles  of  impeachment,  present  them  at 
the  bar  of  the  Senate,  and  prosecute  the  same.  The  trial  must 
be  before  the  Senate,  sitting  as  a  court  of  impeachment. 

3.  When  an  officer  is  impeached  by  the  Assembly  for  a 
misdemeanor  in  office,  the  articles  of  impeachment  must  be  de- 
livered to  the  President  of  the  Senate. 

4.  The  Senate  must  assign  a  day  for  the  hearing  of  the 
impeachment,  and  inform  the  Assembly  thereof.  The  President 
of  the  Senate  must  cause  a  copy  of  the  articles  of  impeachment, 


THE  PENAL  CODE  35 

with  a  notice  to  appear  and  answer  the  same  at  the  time  and 
place  appointed,  to  be  served  on  the  defendant  not  less  than  ten 
days  before  the  day  affixed  for  the  hearing. 

5.  If  the  defendant  does  not  appear,  the  Senate  upon  proof 
of  service  or  publication,  as  provided  in  the  last  two  sections, 
may,  of  its  own  motion,  or  for  cause  shown,  assign  another  day 
for  hearing  the  impeachment,  or  may  proceed,  in  the  absence 
of  the  defendant,  to  trial  and  judgment. 

6.  When  the  defendant  appears,  he  may  in  writing  object 
to  the  sufficiency  of  the  articles  of  impeachment,  or  he  may  an- 
swer the  same  by  an  oral  plea  of  not  guilty,  which  plea  must  be 
entered  upon  the  journal,  and  puts  in  issue  every  material  alle- 
gation of  the  articles  of  impeachment. 

7.  If  the  objection  to  the  sufficiency  of  the  articles  of  im- 
peachment is  not  sustained  by  a  majority  of  the  members  of  the 
Senate  who  heard  the  argument,  the  defendant  must  be  ordered 
forthwith  to  answer  the  articles  of  impeachment.  If  he  then 
pleads  guilty,  or  refuses  to  plead,  the  Senate  must  render 
judgment  of  conviction  against  him.  If  he  pleads  not  guilty, 
the  Senate  must,  at  such  time  as  it  may  appoint,  proceed  to  try 
the  impeachment. 

8.  At  the  time  and  place  appointed,  and  before  the  Senate 
proceeds  to  act  on  the  impeachment,  the  secretary  must  admin- 
ister to  the  President  of  the  Senate,  and  the  President  of  the 
Senate  to  each  of  the  members  of  the  Senate  then  present,  an 
oath  truly  and  impartially  to  hear,  try  and  determine  the  im- 
peachment; and  no  member  of  the  Senate  can  act  or  vote  upon 
the  impeachment,  or  upon  any  question  arising  thereon,  without 
having  taken  such  oath. 

9.  The  defendant  cannot  be  convicted  on  impeachment 
without  the  concurrence  of  two-thirds  of  the  members  elected, 
voting  by  ayes  and  noes,  and  if  two-thirds  of  the  members 
elected,  do  not  concur  in  a  conviction,  he  must  be  acquitted. 

10.  After  conviction,  the  Senate  must,  at  such  time  as  it 
may  appoint,  pronounce  judgment,  in  the  form  of  a  resolution 
entered  upon  the  journal  of  the   Senate. 


36  THE  PENAL  CODE 

CHAPTER  II 

OF  THE  REMOVAL  OF  CIVIL  OFFICERS  OTHERWISE 
THAN  BY  IMPEACHMENT 

1 .  An  accusation  in  writing  against  any  district,  county, 
township,  or  municipal  officer,  for  willful  or  corrupt  misconduct 
in  office,  may  be  presented  by  the  grand  jury  of  the  county  for 
or  in  which  the  officer  named  is  elected  or  appointed. 

2.  The  accusation  must  state  the  offense  charged,  in  ordi- 
nary and  concise  language,  and  without  repetition. 

3.  The  accusation  must  be  delivered  by  the  foreman  of  the 
grand  jury  to  the  district  attorney  of  the  company,  except  when  he 
is  the  officer  accused,  who  must  cause  a  copy  thereof  to  be  served 
upon  the  defendant,  and  require  by  notice  in  writing  of  not  less 
than  ten  days  that  he  appear  before  the  Superior  Court  at  a  time 
mentioned  in  the  notice,  and  answer  the  accusation.  The  orig- 
inal accusation  must  then  be  filed  with  the  clerk  of  the  court. 

4.  The  defendant  must  appear  at  the  time  appointed  in 
the  notice  and  answer  the  accusation,  unless  for  some  sufficient 
cause  the  court  assign  another  day  for  that  purpose.  If  he  does 
not  appear,  the  court  may  proceed  to  hear  and  determine  the 
accusation  in  his  absence. 

5.  The  defendant  may  answer  the  accusation  either  by 
objecting  to  the  sufficiency  thereof  or  of  any  article  therein,  or 
by  denying  the  truth  of  the  same. 

6.  If  he  objects  to  the  legal  sufficiency  of  the  accusation, 
the  objection  must  be  in  writing,  but  need  not  be  in  any  specific 
form,  it  being  sufficient  if  it  presents  intelligibly  the  grounds  of 
the  objection. 

7.  If  he  denies  the  truth  of  the  accusation,  the  denial  may 
be  oral  and  without  oath  and  must  be  entered  upon  the  minutes. 

8.  If  an  objection  to  the  sufficiency  of  the  accusation  is 
not  sustained,  the  defendant  must  answer  thereto  forthwith. 

9.  If  the  defendant  pleads  guilty,  or  refuses  to  answer  the 
accusation,  the  court  must  render  judgment  of  conviction  against 
him.     If  he  denies  the  matters  charged,  the  court  must  imme- 


THE  PENAL  CODE  37 

diately,  or  at  such  time  as  it  may  appoint,  proceed  to  try  the  ac- 
cusation. 

I  0.  The  trial  must  be  by  a  jury,  and  conducted  in  all  re- 
spects in  the  same  manner  as  the  trial  of  an  indictment  for  a 
misdemeanor. 

Title  III 


Chapter  III 

THE    INFORMATION 

1 .  The  complaint  is  the  allegation  in  writing  made  to  a 
court  or  magistrate  that  a  person  has  been  guilty  of  some  des- 
ignated offense. 

2.  A  magistrate  is  an  officer  having  power  to  issue  a  war- 
rant for  the  arrest  of  a  person  charged  with  a  public  offense. 

3.  The  following  persons  are  magistrates : 

(a)  The  justices  of  the  Supreme  Court. 

(b)  The  judges  of  the  Superior  Court. 

(c)  Justices  of  the  peace. 

Chapter  VII 

EXAMINATION  OF  THE  CASE,  AND  DISCHARGE  OF  THE  DEFEND- 
ANT, OR  HOLDING  HIM  TO  ANSWER 

1 .  When  the  defendant  is  brought  before  the  magistrate 
upon  any  arresr,  either  with  or  without  warrant,  on  a  charge  of 
having  committed  a  public  offense,  the  magistrate  must  im- 
mediately inform  him  of  the  charge  against  him  ;  of  his  right  to 
the  aid   of  counsel  in  every  stage  of  the  proceedings. 

2.  He  must  also  allow  the  defendant  a  reasonable  time  to 
send  for  counsel,  and  postpone  the  examination  for  that  purpose; 
and  must,  upon  the  request  of  the  defendant,  require  a  peace 
officer  to  take  a  message  to  any  counsel  in  any  Company  in  the 
School  the  defendant  may  name.  The  officer  must,  without 
delay  and  without  fee,  perform  that  duty. 


38  THE  PENAL  CODE 

3.  If  the  defendant  requires  the  aid  of  counsel,  the  magis- 
trate must,  immediately  after  the  appearance  of  counsel,  or  if, 
after  waiting  a  reasonable  time  therefor,  none  appear,  proceed 
to  examine  the  case. 

4.  The  witnesses  must  be  examined  in  the  presence  of  the 
defendant,  and  may  be    cross-examined  in  his  behalf. 

5.  When  the  examination  of  witnesses  on  the  part  of  the 
people  is  closed,  any  witnesses  the  defendant  may  produce  must 
be  sworn  and  examined. 

6.  While  a  witness  is  under  examination,  the  magistrate 
may  exclude  all  witnesses  who  have  not  been  examined.  He 
may  also  cause  the  witnesses  to  be  kept  separate,  and  to  be  pre- 
vented from  conversing  with  each  other  until  they  are  all  exam- 
ined. 

7.  The  magistrate  must  also,  upon  the  request  of  the  de- 
fendant, exclude  from  the  examination  every  person  except  his 
clerk,  the  prosecutor  and  his  counsel,  the  attorney-general,  the 
district  attorney,  the  defendant  and  his  counsel,  and  the  officer 
having  the  defendant  in  his  custody. 

8.  If  a  witness,  required  to  enter  into  an  undertaking  to 
appear  and  testify  either  with  or  without  sureties,  refuses  com- 
pliance with  the  order  for  that  purpose,  the  magistrate  must 
commit  him  to  prison  until  he  complies  or  is  legally  discharged. 

9.  When  a  magistrate  has  discharged  a  defendant,  or  has 
held  him  to  answer,  he  must  return,  without  delay,  to  the  clerk 
of  the  court  at  which  the  defendant  is  required  to  appear,  the 
warrant,  if  any,  the  depositions  and  all  undertakings  of  bail,  or 
for  the  appearance  of  witnesses,  taken  by  him. 


THE  PENAL  CODE  39 

Title  IV 


OF  PROCEEDINGS  AFTER  COMMITMENT  AND 
BEFORE  INDICTMENT 

Chapter  II 

FORMATION  OF  THE  GRAND  JURY 

1.  The  grand  jury  being  impaneled  and  sworn,  must  be 
charged  by  the  court.  In  doing  so,  the  court  must  give  them 
such  information  as  it  may  deem  proper,  or  as  is  required  by 
law,  as  to  their  duties,  and  as  to  any  charges  for  public  offenses 
returned  to  the  court  or  likely  to  come  before  the  grand  jury. 

2.  The  grand  jury  must  then  retire  to  a  private  room,  and 
inquire  into  the  offenses  cognizable  by  them.  On  the  comple- 
tion of  the  business  before  them,  they  must  be  discharged  by 
the  court;  but,  whether  the  business  is  completed  or  not,  they 
are  discharged  by  the  final  adjournment  of  the  court. 

3.  If  an  offense  is  committed  during  the  sitting  of  the  court, 
after  the  discharge  of  the  grand  jury,  the  court  may,  in  its  dis- 
cretion, direct  an  order  to  be  entered  that  the  sheriff  summon 
another  grand  jury. 

4.  The  order  must  require  the  sheriff  to  summon  at  least 
nineteen  persons,  qualified  to  serve  as  jurors,  to  appear  at  a  time 
specified,  and  a  copy  thereof,  under  the  seal  of  the  court,  must 
by  the  clerk  be  delivered  to  the  sheriff. 

5.  The  sheriff  must  execute  the  order  and  return  it,  with  a 
list  of  names  of  the  persons  summoned. 

6.  At  the  time  appointed  the  list  must  be  called  over,  and 
the  names  of  those  in  attendance  be  written  by  the  clerk  on  sep- 
arate ballots  and  put  into  a  box  from  which  a  grand  jury  must 
be  drawn. 

7.  The  grand  jury  must  inquire  into  all  public  offenses 
committed  or  triable  within  the  School,  and  present  them  to  the 
court,  either  by  presentment  or  indictment. 


40  THE  PENAL  CODE 

8.  A  presentment  is  an  informal  statement  in  writing  by 
the  grand  jury,  representing  to  the  court  that  a  public  offense  has 
been  committed  which  is  triable  in  the  School,  and  that  there  is 
reasonable  ground  for  believing  that  a  particular  individual 
named  or  described  therein  has  committed  it. 

9.  An  indictment  is  an  accusation  in  writing,  presented  by 
the  grand  jury  to  a  competent  court,  charging  a  person  with  a 
public  offense. 

10.  The  foreman  may  administer  an  oath  to  any  witness 
appearing  before  the  grand  jury. 

11.  In  the  investigation  of  a  charge  for  the  purpose  of  either 
presentment  or  indictment,  the  grand  jury  can  receive  no  other 
evidence  than  such  as  is  given  by  witnesses  produced  and  sworn 
before  them,  or  furnished  by  legal  documentary  evidence,  or  the 
deposition  of  a  witness.  The  grand  jury  can  receive  none  but 
legal  evidence,  and  the  best  evidence  in  degree,  to  the  exclusion 
of  hearsay,  or  secondary  evidence. 

12.  The  grand  jury  is  not  bound  to  hear  evidence  for  the 
defendant;  but  it  is  their  duty  to  weigh  all  the  evidence  submit- 
ted to  them,  and  when  they  have  reason  to  believe  that  other 
evidence  within  their  reach  will  explain  away  the  charge,  they 
should  order  such  evidence  to  be  produced,  and  for  that  purpose 
may  require  the  district  attorney  to  issue  process  for  the  wit- 
nesses. 

1  3.  The  grand  jury  ought  to  find  an  indictment  when  all 
the  evidence  before  them,  taken  together,  if  unexplained  or  un- 
contradicted, would,  in  their  judgment,  warrant  a  conviction  by 
a  trial  jury. 

14.  If  a  member  of  the  grand  jury  knows,  or  has  reason  to 
believe,  that  a  public  offense,  triable  within  the  School,  has  been 
committed,  he  must  declare  the  same  to  his  fellow-jurors,  who 
must  thereupon  investigate  the  same. 

15.  The  grand  jury,  may  at  all  reasonable  times,  ask  the 
advice  of  the  court,  or  the  judge  thereof,  or  of  the  district  attor- 
ney; but  unless  such  advice  is  asked  the  judge  of  the  court  must 
not  be  present  during  the  sessions  of  the  grand  jury.  The  dis- 
trict attorney  of  the  School  may   at   all   times  appear  before   the 


THE  PENAL  CODE  *  41 

grand  jury  for  the  purpose  of  giving  information  or  advice  rela- 
tive to  any  matter  cognizable  by  them  and  may  interrogate  wit- 
nesses before  them  whenever  they  or  he  thinks  it  necessary;  but 
no  other  person  is  permitted  to  be  present  during  the  sessions 
of  the  grand  jury  except  the  members  and  witnesses  actually  un- 
der examination,  and  no  person  must  be  permitted  to  be  present 
during  the  expression  of  their  opinions  or  giving  their  votes  on 
any  matter  before  them. 

1 6.  Every  member  of  the  grand  jury  must  keep  secret 
whatever  he  himself  or  any  other  grand  juror  may  have  voted 
on  a  matter  before  them;  but  may,  however,  be  required  by  any 
court  to  disclose  the  testimony  of  a  witness  examined  before  the 
grand  jury,  for  the  purpose  of  ascertaining  whether  it  is  consis- 
tent with  that  given  by  the  witness  before  the  court,  or  to  dis- 
close the  testimony  given  before  them  by  any  person,  upon  a 
charge  against  such  person  for  perjury  in  giving  his  testimony  or 
upon  trial  therefor. 

I  7.  A  grand  juror  cannot  be  questioned  for  anything  he 
may  say,  or  any  vote  he  may  give  in  the  grand  jury,  relative  to 
a  matter,  legally  pending  before  the  jury,  except  for  a  perjury 
of  which  he  may  have  been  guilty,  in  making  an  accusation  or 
giving  testimony  to  his  fellow-jurors. 

Chapter  IV 

PRESENTMENT,  AND  PROCEEDINGS  THEREON 

1.  A  presentment  cannot  be  found  without  the  concur- 
rence of  at  least  twelve  grand  jurors.  When  so  found  it  must 
be  signed  by  the  foreman. 

2.  The  presentment,  when  found,  must  be  presented  by 
the  foreman,  in  the  presence  of  the  grand  jury,  to  the  court,  and 
must  be  filed  with  the  clerk. 

3.  If  the  facts  stated  in  the  presentment  constitute  a  public 
offense,  triable  in  the  School,  the  court  must  direct  the  clerk  to 
issue  a  bench-warrant  for  the  arrest  of  the  defendant. 


42  THE  PENAL  CODE 

Title  V 


OF  THE  INDICTMENT 

Chapter  I 

FINDING  AND  PRESENTMENT  OF  THE  INDICTMENT 

1 .  An  indictment  cannot  be  found  without  the  concurrence 
of  at  least  twelve  grand  jurors.  When  so  found,  it  must  be  en- 
dorsed, "A  True  Bill,"  and  the  endorsement  must  be  signed  by 
the  foreman  of  the  grand  jury. 

2.  If  twelve  grand  jurors  do  not  concur  in  finding  an  in- 
dictment against  a  defendant  who  had  been  held  to  answer,  the 
depositions  and  statement,  if  any,  transmitted  to  them  must  be 
returned  to  the  court,  with  an  indorsement  thereon,  signed  by 
the  foreman,  to  the  effect  that  the  charge  is  dismissed. 

3.  The  dismissal  of  the  charge  does  not  prevent  its  resub- 
mission to  a  grand  jury  as  often  as  the  court  may  direct.  But 
without  such  direction  it  cannot  be  resubmitted. 

4.  When  an  indictment  is  found,  the  names  of  the  wit- 
nesses examined  before  the  grand  jury,  or  whose  depositions 
may  have  been  read  before  them,  must  be  inserted  at  the  foot 
of  the  indictment,  or  indorsed  thereon,  before  it  is  presented  to 
the  court. 

5.  When  an  indictment  is  found  against  a  defendant  not 
in  custody,  the  same  proceedings  must  be  had  as  are  prescribed 
in  sections  provided  in  other  chapters. 


Chapter  II 

1 .  No  indictment  or  information  is  insufficient,  nor  can  the 
trial,  judgment,  or  other  proceeding  thereon  be  affected  by 
reason  of  any  defect  or  imperfection  in  matter  of  form  which 
does  not  tend  to  the  prejudice  of  a  substantial  right  of  the  de- 
fendant upon  its  merits. 


THE  PENAL  CODE  43 

2.  When  an  instrument,  which  is  the  subject  of  an  indict- 
ment or  information  for  forgery  has  been  destroyed  or  withheld 
by  the  act  or  the  procurement  of  the  defendant,  and  the  fact  of 
such  destruction  or  withholding  is  alleged  in  the  indictment  or 
information,  and  established  on  the  trial,  the  misdescription  of 
the  instrument  is  immaterial. 

3.  In  an  indictment  or  information  for  perjury,  or  subordi- 
nation of  perjury,  it  is  sufficient  to  set  forth  the  substance  of  the 
controversy  or  matter  in  respect  to  which  the  offense  was  com- 
mitted, and  in  what  court,  and  before  whom  it  was  taken,  had 
authority  to  administer  it,  with  proper  allegations  of  the  falsity 
of  the  matter  on  which  the  perjury  is  assigned;  but  the  indict- 
ment or  information  need  not  set  forth  the  pleadings,  record  or 
proceedings  with  which  the  oath  is  connected,  nor  the  commis- 
sion or  authority  of  the  court  or  person  before  whom  the  perjury 
was  committed. 

4.  Upon  an  indictment  or  information  against  several  de- 
fendants, any  one  or  more  may  be  convicted  or  acquitted. 


Title  VI 


OF  PLEADINGS  AND  PROCEEDINGS  AFTER  INDICTMENT  AND  BE- 
FORE THE  COMMENCEMENT  OF  THE  TRIAL 

Chapter  I 

OF  THE  ARRAIGNMENT  OF  THE  DEFENDANT 

1 .  If  the  indictment  or  information  be  for  a  felony,  the 
defendant  must  be  personally  present;  but  if  for  a  misdemeanor, 
he  may  appear  upon  the  arraignment  by  counsel. 

2.  When  his  personal  appearance  is  necessary,  if  he  is  in 
custody,  the  court  may  direct,  and  the  officer  in  whose  custody 
he  is  must  bring  him  before  it  to  be  arraigned. 


44  THE  PENAL  CODE 

3.  If  the  defendant  has  been  discharged  on  bail,  or  has  de- 
posited money  instead  thereof,  and  do  not  appear  to  be  arraigned 
when  his  personal  appearance  is  necessary,  the  court,  in  addition 
to  the  forfeiture  of  the  undertaking  of  bail  or  of  the  money  de- 
posited, may  direct  the  clerk  to  issue  a  bench-warrant  for  his 
arrest. 

4.  The  arraignment  must  be  made  by  the  court,  or  by  the 
clerk  or  district  attorney  under  its  direction,  and  consists  in  read- 
ing the  indictment  or  information  to  tjhe  defendant  and  deliver- 
ing to  him  a  copy  thereof,  and  of  the  indorsements  thereon, 
including  the  list  of  witnesses,  and  asking  him  whether  he  pleads 
guilty  or  not  guilty  to  the  indictment  or  information. 

5.  If,  on  the  arraignment,  the  defendant  requires  it,  he  must 
be  allowed  a  reasonable  time,  not  less  than  one  day,  to  answer 
the  indictment  or  information.  He  may,  in  answer  to  the 
arraignment  move  to  set  aside,  demur,  or  plead  to  the  indictment 
or  information. 

Chapter   II 

SETTING   ASIDE  THE  INDICTMENT 

I.  The  indictment  or  information  must  be  set  aside  by  the 
court  in  which  the  defendant  is  arraigned,  upon  his  motion,  in 
either  of  the  following  cases:  If  it  be  an  indictment, 

(a)  Where  it  is  not  found,  indorsed,  and  presented  as 
prescribed  in  this  Code. 

(b)  When  the  names  of  the  witnesses  examined  before 
the  grand  jury,  or  whose  depositions  may  have  been 
read  before  them,  are  not  inserted  at  the  foot  of  the 
indictment  or  indorsed  thereon. 

(c)  When  a  person  is  permitted  to  be  present  during  the 
session  of  the  grand  jury,  and  when  the  charge  em- 
braced in  the  indictment  is  under  consideration, 
except  as  provided  in  section  fifteen  of  Chapter  three 
Title  four,  i 

(d)  When  the  defendant  had  not  been  held  to  answer 
before  the  finding  of  the  indictment,  on  any  ground 


THE  PENAL  CODE  45 

which  would  have  been  good  ground  for  challenge, 
either  to  the  panel  or  to  any  individual  grand  juror. 
If  it  be  on  information, 

(a)  That  before  the  filing  thereof  the  defendant  had  not 
been  legally  committed  by  a  magistrate. 

(b)  That  it  was  not  subscribed  by  the  district  attorney 
of  the  county. 

2.  If  the  motion  to  set  aside  the  indictment  or  information 
is  not  made,  the  defendant  is  precluded  from  afterward  taking  the 
objections  mentioned  in  the   last  section. 

Chapter  III 

DEMURRER 

1 .  The  only  pleading  on  the  part  of  the  defendant  is  either 
a  demurrer  or  a  plea. 

2.  Both  the  demurrer  and  the  plea  must  be  put  in,  in  open 
court,  either  at  the  time  of  the  arraignment,  or  at  such  other  time 
as  may  be  allowed  to  the  defendant  for  that  purpose. 

3.  The  demurrer  must  be  in  writing,  signed  either  by  the 
defendant  or  his  counsel,  and  filed.  It  must  distinctly  specify 
the  grounds  of  objection  to  the  indictment  or  information,  or  it 
must  be  disregarded. 

4.  Upon  the  demurrer  being  filed,  the  argument  upon  the 
objections  presented  thereby  must  be  heard,  either  immediately, 
or  at  such  time  as  the  court  may  appoint. 

5.  Upon  considering  the  demurrer,  the  court  must  give 
judgment,  either  allowing  or  disallowing  it,  and  an  order  to  that 
effect  must  be  entered  upon  the  minutes. 

6.  If  the  demurrer  is  allowed,  the  judgment  is  final  upon 
the  indictment  or  information  demurred  to,  and  is  a  bar  to  an- 
other prosecution  for  the  same  offense,  unless  the  court,  being 
of  the  opinion  that  the  objection  on  which  the  demurrer  is  allow- 
ed may  be  avoided  in  a  new  indictment  or  information,  directs 
the  case  to  be  submitted  to  another  grand  jury,  or  directs  a  new 
information  to  be  filed  ;  provided,  that  after  such  order  of  resub- 
mission, the  defendant  may  be  examined  before  a  magistrate, 
and  discharged  or  committed  by  him,  as  in  other  cases. 


46  THE  PENAL  CODE 

Chapter  IV 

PLEA 

1 .  There  are  four  kinds  of  pleas  to  an  indictment  or  infor- 
mation.    A  plea  of 

(a)  Guilty 

(b)  Not  guilty. 

(c)  A  former  judgment  of  conviction  or  acquittal  of  the 
offense  charged,  which  may  be  placed  either  with  or 
without  the  plea  of  not  guilty. 

(d)  Once  in  jeopardy. 

2.  Every  plea  must  be  oral,  and  entered  upon  the  minutes 
of  the  court,  in  substantially  the  following  form : 

(a)  If  the  defendant  plead  guilty  :  "The  defendant  pleads 
that  he  is  guilty  of  the  offense  charged." 

(b)  If  he  plead  not  guilty  :  "The  defendant  pleads  that 
he  is  not  guilty  of  the  offense  charged." 

(c)  If  he  plead  a  former  conviction  or  acquittal  :  "The 
defendant  pleads  that  he  has  already  been  convicted 
(or  acquitted)  of  the  offense  charged  by  the  judgment 
of  the  court  of  (naming  it,)  rendered  at  (naming  the 
place,)  on  the day  of " 

(d)  If  he  plead  once  in  jeopardy  :  "The  defendant  pleads 
that  he  has  once  been  in  jeopardy  for  the  offense 

charged  (specifying  the  time,  place  and  court)." 

3.  A  plea  of  guilty  can  be  put  in  by  the  defendant  himself 
only  in  open  court,  unless  upon  indictment  or  information  against 
a  corporation,  in  which  case  it  may  be  put  in  by  counsel.  The 
court  may,  at  any  time  before  judgment,  upon  a  plea  of  guilty, 
permit  it  to  be  withdrawn,  and  a  plea  of  not  guilty  submitted. 

4.  The  plea  of  not  guilty  puts  in  issue  every  material  alle- 
gation of  the  indictment  or  information. 

5.  When  the  defendant  is  convicted  or  acquitted,  or  has 
been  once  placed  in  jeopardy  upon  an  indictment  or  information 
the  conviction,  acquittal,  or  jeopardy,  is  a  bar  to  another  indict- 
ment or  information  for  the  offense  charged  in  the  former,  or  for 
an  attempt  to  commit  the  same,  or  for  an   offense    necessarily 


THE  PENAL  CODE  47 

included  therein,  of  which  he  might  have  been  convicted  under 
that  indictment  or  information. 

6.  If  the  defendant  refuses  to  answer  the  indictment  or 
information  by  demurrer  or  plea,  a  plea  of  not  guilty  must  be 
entered. 


Chapter  VIII 

FORMATION  OF  THE  TRIAL  JURY  AND  THE  CALENDAR  OF 
ISSUES  FOR  THE  TRIAL 

1.  Trial  juries  for  criminal  actions  are  formed  in  the  same 
manner  as  trial  juries  in  civil  actions. 

2.  The  clerk  must  keep  a  calendar  of  all  criminal  actions 
pending  in  the  court,  enumerating  them  according  to  the  date  of 
filing  of  the  indictment  or  information  specifying  opposite  the 
title  of  each  action  whether  it  is  for  a  felony  or  a  misdemeanor, 
and  whether  the  defendant  is  in  custody  or  on  bail. 


Title  VII 


OF  PROCEEDINGS  AFTER  THE  COMMENCEMENT  OF  THE 
TRIAL  AND  BEFORE  JUDGMENT 

Chapter  I 

CHALLENGING  THE  JURY 

f.      A  challenge  is  an  objection  made  to  the  trial  jurors,  and 
is  of  two  kinds : 

(a)  To  the  panel. 

(b)  To  an  individual  juror. 

2.  When  several  defendants  are  tried  together,  they  cannot 
sever  their  challenges,  but  must  join  therein. 

3.  The  panel  is  a  list  of  jurors  returned  by  a  sheriff  to  serve 
at  a  particular  court,  for  the  trial  of  a  particular  action. 

4.  A  challenge  to  the  panel  is  an  objection  made  to  all  the 
jurors  returned,  and  may  be  taken  by  either  party. 


48  THE  PENAL  CODE 

5.  A  challenge  to  the  panel  must  be  taken  before  a  juror  is 
sworn,  and  must  be  in  writing  or  be  noted  by  the  phonographic 
reporter,  and  must  plainly  and  distinctly  state  the  facts  constitut- 
ing the  ground  of  challenge. 

6.  If  the  sufficiency  of  the  facts  alleged  as  ground  of  the 
challenge,  is  denied,  the  adverse  party  may  except  to  the  chal- 
lenge. The  exception  need  not  be  in  writing,  but  must  be  enter- 
ed on  the  minutes  of  the  court,  or  of  the  phonographic  reporter 
and  thereupon  the  court  must  proceed  to  try  the  sufficiency  of 
the  challenge,  assuming  the  facts  alleged  therein  to  be  true. 

7.  If,  either  upon  an  exception  to  the  challenge,  or  a  denial 
of  the  facts,  the  challenge  is  allowed,  the  court  must  discharge 
the  jury  so  far  as  the  trial  in  question  is  concerned.  If  it  is  dis- 
allowed, the  court  must  direct  the  jury  to  be  impaneled. 

8.  Before  a  juror  is  called,  the  defendant  must  be  informed 
by  the  court  or  under  its  direction,  that  if  he  intends  to  challenge 
an  individual  juror  he  must  do  so  when  the  juror  appears  and 
before  he  is  sworn. 

9.  A  challenge  to  an  individual  juror  is  either, 

(a)  Peremptory  ;      or 

(b)  For  cause. 

1  0.  It  must  be  taken  when  the  juror  appears,  and  before 
he  is  sworn  to  try  the  cause  ;  but  the  court  may  for  cause  permit 
it  to  be  taken  after  the  juror  is  sworn  and  before  the  jury  is 
completed. 

11.  A  peremptory  challenge  can  be  taken  by  either  party, 
and  may  be  oral.  It  is  an  objection  to  a  juror  for  which  no  rea- 
son need  be  given,  but  upon  which  the  court  must  exclude  him. 

12.  A  challenge  for  cause  may  be  taken  by  either  party. 
It  is  an  objection  to  a  particular  juror,  and  is  either  : 

(a)  General — That  the  juror  is  disqualified  from  serving 
in  any  case  :    or, 

(b)  Particular — That  he   is  disqualified   from  serving  in 
the  action  on  trial. 


THE  PENAL  CODE  49 

Chapter  II 

THE  TRIAL 

1.  The  jury  having  been  impaneled  and  sworn,  the  trial 
must  proceed  in  the  following  order,  unless  otherwise  directed 
by  the  court: 

(a)  If  the  indictment  or  information  be  for  felony,  the 
clerk  must  read  it,  and  state  the  plea  of  the  defend- 
ant to  the  jury,  and  in  cases  where  it  charges  a  prev- 
ious conviction,  and  the  defendant  has  confessed  the 
same,  the  clerk  in  reading  shall  omit  therefrom  all 
that  relates  to  such  previous  conviction.  In  all  other 
cases  this  formality  may  be  dispensed  with. 

(b)  The  district  attorney,  or  other  counsel  for  the  people 
must  open  the  cause  and  offer  the  evidence  in  sup- 
port thereof. 

(c)  The  defendant  or  his  counsel  may  then  open  the  de- 
fense, and  offer  his  evidence  in  support  thereof. 

(d)  The  parties  may  then  respectively  offer  rebutting 
testimony  only  unless  the  court,  for  good  reason,  in 
furtherance  of  justice,  permit  them  to  offer  evidence 
upon  their  original  case. 

(e)  When  the  evidence  is  concluded,  unless  the  case  is 
•    submitted  to  the  jury  on  either  side,  or  on  both  sides, 

without  argument,  the  district  attorney  or  other  coun- 
sel for  the  people,  and  counsel  for  the  defendant, 
may  argue  the  case  to  the  court  and  jury  ;  the  district 
attorney  or  counsel  for  the  people  opening  the  argu- 
ment, and  having  right  to  close. 

(f)  The  judge  may  then  charge  the  jury,  and  must  do  so 
on  any  points  pertinent  to  the  issue,  if  requested  by 
either  party;  and  he  may  state  the  testimony  and  de- 
clare the  law.  If  the  charge  be  not  given  in  writing 
it  must  be  taken  down  by  the  phonographic  reporter. 

2.  When  the  state  of  the  pleadings  requires  it,  or  in  any 
other  case,  for  good  reasons,  and  in  the  sound  discretion  of  the 
court,  the  order  prescribed  in  the  last  section  may  be  departed 
from. 


50  THE  PENAL  CODE 

3.  When  two  or  more  defendants  are  jointly  charged  with 
a  felony,  any  defendant  requiring  it,  must  be  tried  separately. 
In  other  cases  defendants  jointly  charged  may  be  tried  separately 
or  jointly  in  the  discretion  of  the  court. 

4.  If  a  juror  has  any  personal  knowledge  respecting  a  fact 
controversy  in  a  cause,  he  must  declare  the  same  in  open  court 
during  the  trial.  If,  during  the  retirement  of  the  jury,  a  juror 
declare  a  fact  which  could  be  evidence  in  the  cause,  as  of  his 
own  knowledge,  the  jury  must  return  into  court.  In  either  of 
these  cases,  the  juror  making  the  statement  must  be  sworn  as  a 
witness  and  examined  in  the  presence  of  the  parties. 

5.  The  jurors  sworn  to  try  an  action  may,  at  any  time  be- 
fore the  submission  of  the  cause  to  the  jury,  in  the  discretion  of 
the  court,  be  permitted  to  separate  or  be  kept  in  charge  of  a 
proper  officer.  The  officer  must  be  sworn  to  keep  the  jurors  to- 
gether until  the  next  meeting  of  the  court,  to  suffer  no  person  to 
speak  to  them,  or  communicate  with  them,  nor  to  do  so  himself, 
on  any  subject  connected  with  the  trial,  and  to  return  them  into 
court  at  the  next  meeting  thereof. 

6.  The  court  must  decide  all  questions  of  law  which  arise 
in  the  course  of  a  trial. 

7.  In  charging  the  jury,  the  court  must  state  to  them  all 
matters  of  law  necessary  for  their  information.  Either  party  may 
present  to  the  court  any  written  charge  and  request  that  it  be  giv- 
en. If  the  court  thinks  it  correct  and  pertinent  it  must  be  given, 
if  not,  it  must  be  refused.  Upon  each  charge  presented  and 
given  or  refused,  the  court  must  distinguish,  showing  by  the  in- 
dorsement what  part  of  the  charge  was  given  and  what  part  re- 
fused. 

Chapter  IV 

THE  VERDICT 

I.  When  the  jury  have  agreed  upon  their  verdict,  they 
must  be  conducted  into  court  by  the  officer  having  them  in 
charge.  Their  names  must  then  be  called,  and  if  all  do  not  ap- 
pear, the  rest  must  be  discharged  without  giving  a  verdict.  In 
that  case  the  action  may  be  again  tried  at  the  same  or  another 
term. 


THE  PENAL  CODE  51 

2.  If  charged  with  a  felony,  the  defendant  must,  before  the 
verdict  is  received,  appear  in  person.  If  for  a  misdemeanor 
the  verdict  may  be  rendered  in  his  absence. 

3.  When  the  jury  appears,  they  must  be  asked  by  the  court, 
or  clerk,  whether  they  have  agreed  upon  their  verdict,  and  if  the 
foreman  answers  in  the  affirmative,  they  must,  on  being  required, 
declare  the  same. 

4.  The  jury  may  render  a  general  verdict,  or,  when  they 
are  in  doubts  as  to  the  legal  effect  of  the  facts  proved,  they  may. 
except  upon  a  trial  for  libel,  find  a  special  verdict. 


Title  IX 


OF  APPEALS  TO  THE  SUPREME  COURT 

Chapter  I 

APPEALS,  WHEN  ALLOWED,  AND  HOW  TAKEN,  AND 
THE  EFFECT  THEREOF 

1 .  Either  party  in  a  criminal  action  amounting  to  a  felony 
may  appeal  to  the  Supreme  Court,  on  questions  of  law  alone,  as 
prescribed  in  this  chapter. 

2.  The  party  appealing  is  known  as  the  appellant,  and  the 
adverse  party  as  the  respondent,  but  the  title  of  the  action  is  not 
changed  in  consequence  of  the  appeal. 

3.  An  appeal  may  be  taken  by  the  defendant: 

(a)  From  a  final  judgment  of  conviction. 

(b)  From  an  order  denying  a  motion  for  a  new  trial. 

(c)  From    an   order  made  after  judgment,  affecting  the 
substantial  rights  of  the  party. 

4.  An  appeal  may  be  taken  by  the  people: 

(a)  From  a  judgment  for  the  defendant  on   a  demurrer 
to  the  indictment  or  information. 

(b)  From  an  order  granting  a  new  trial. 

(c)  From  an  order  arresting  judgment. 


52  THE  PENAL  CODE 

(d)     From    an    order   made  after  judgment,   affecting  the 

substantial  rights  of  the  people. 
(c)     From  an  order  of  the  court  directing  the  jury  to  find 

for  the  defendant. 

5.  An  appeal  is  taken  by  filing  with  the  clerk  of  the  court 
in  which  the  judgment  or  order  appealed  from  is  entered  or  filed, 
a  notice  stating  the  appeal  from  the  same,  and  serving  a  copy 
thereof  upon  the  attorney  of  the  adverse  party. 

6.  An  appeal  which  is  taken  by  the  people  in  no  case  stays 
or  affects  the  operation  of  a  judgment  in  favor  of  the  defendant, 
until  judgment  is  reversed. 

7.  Upon  the  appeal  being  taken,  the  clerk  of  the  court 
with  whom  the  notice  of  appeal  is  filed  must,  within  five  days 
thereafter,  in  case  the  bill  of  exceptions  has  been  settled  by  the 
judge  before  the  giving  of  said  notice,  but  if  not,  then  within 
twenty  days  from  the  settlement  of  the  bill  of  exceptions,  with- 
out charge,  transmit  to  the  clerk  of  the  appellate  court  fifteen 
printed  copies  (one  of  which  shall  be  certified  to  and  be  the  orig- 
inal) of  the  notice  of  appeal,  the  record,  and  all  bills  of  excep- 
tions; and,  upon  the  receipt  thereof,  the  clerk  of  the  appellate 
court  must  file  the  original,  and  dispose  of  the  copies  as  he  is 
required  to  do  in  the  case  of  transcripts  on  appeal  in  civil  cases, 
and  all  his  services  as  provided  herein  must  be  without  charge. 
The  clerk  of  the  lower  court  must  also  within  the  time  above 
specified  serve  printed  copies  of  the  above  named  papers,  with- 
out charge,  upon  the  defendant's  attorney,  and  upon  the  Attor- 
ney  General. 

Chapter  HI 

ARGUMENT  OF  THE  APPEAL 

1 .  All  appeals  in  criminal  cases  must  be  heard  and  deter- 
mined by  the  appellate  court,  within  fifteen  days  after  the  record 
is  filed  in  said  appellate  court,  unless  continued  on  motion  or 
with  the  consent  of  the  defendant. 

2.  The  judgment  may  be  affirmed  if  the  appellant  fail  to 
appear,  but  can  be  reversed  only  after  argument,  though  the 
respondent  fail  to  appear. 


THE  PENAL  CODE  53 

3.  The  defendant  need  not  personally  appear  in  the  appel- 
late court. 

Chapter  IV 

JUDGMENT  UPON  APPEAL 

1 .  After  hearing  the  appeal,  the  court  must  give  judgment 
without  regard  to  technical  errors  or  defects,  or  to  exceptions, 
which  do  not  affect  the  substantial  rights  of  the  parties. 

2.  The  court  may  reverse,  affirm,  or  modify  the  judgment 
or  order  appealed  from,  and  may  set  aside,  affirm,  or  modify  any 
or  all  of  the  proceedings  subsequent  to,  or  dependent  upon,  such 
judgment  or  order,  and  may,  if  proper,  order  a  new  trial. 

3.  When  a  new  trial  is  ordered,  it  must  be  directed  to  be 
had  in  the  court  of  the  Company  from  which  the  appeal  was  taken. 

4.  If  a  judgment  against  the  defendant  is  affirmed,  the 
original  judgment  must  be  enforced. 

5.  When  the  judgment  of  the  appellate  court  is  given,  it 
must  be  entered  in  the  minutes,  and  a  certified  copy  of  the  entry 
forthwith  remitted  to  the  clerk  of  the  court  from  which  the  ap- 
peal was  taken. 

Title  X 


MISCELLANEOUS  PROCEEDINGS 

Chapter  II 

WHO  MAY  BE  WITNESSES  IN  CRIMINAL  ACTIONS 

1.  The  rules  for  determining  the  competency  of  witnesses 
in  civil  actions  are  applicable  also  to  criminal  actions  and  pro- 
ceedings, except  as  otherwise  provided  in  this  code. 

2.  All  persons  who  are  disinterested,  and  not  infamous  are 
competent  witnesses,  and  are  presumed  to  be  so  until  the  con- 
trary is  shown. 

3.  A  person  convicted  of  an  infamous  crime  is  a  compe- 
tent witness  before  sentence. 


54  THE  PENAL  CODE 

4.  An  accomplice  should  not  be  made  a  witness  without 
an  order  of  the  court,  on  application,  showing  that  there  is  no 
other  witness  by  whom  the  offense  can  be  proved. 

5.  It  is  not  a  valid  objection  to  a  witness  that  his  name  is 
not  entered  on  the  indictment. 

6.  There  is  no  rule  of  law  fixing  the  precise  amount  of  ex- 
perience or  degree  of  skill  necessary  to  constitute  an  expert. 

7.  When  a  witness  is  examined  as  an  expert,  the  other 
party  may  cross-examine  him  by  taking  his  opinion  based  on 
another  state  of  assumed  facts,  or  on  a  hypothetical  case. 

8.  A  witness,  even  though  not  an  expert,  who  details  a 
conversation  had  between  him  and  another,  may  in  connection 
therewith,  state  his  opinion,  belief  and  impression  as  to  the  state 
of  mind  of  such  person. 

9.  Books  of  Science,  as  medical  books,  are  not  admissible 
in  evidence,  either  to  sustain  or  contradict  the  opinion  of  a 
witness. 

1  0.  A  witness  may  make  use  of  a  memorandum  taken  at 
the  time  of  the  facts  contained  therein. 

1  I.  Opposing  counsel  is  entitled  to  an  inspection  of  pap- 
ers offered  in  evidence  to  explain  them  or  disprove  their  authen- 
ticity. 

12.  Where  the  answer  to  a  question  may  furnish  evidence 
to  convict  a  witness,  he  is  not  bound  to  answer  unless  exempt 
from  liability  by  statute. 

1 3.  The  court  may  in  its  discretion  allow  or  disallow  a 
question  which  tends  to  disgrace  or  degrade  a  witness. 

1 4.  A  party  is  not  allowed  to  contradict  his  own  witness 
by  asking  him  whether  he  had  not  sworn  differently  on  a  former 
occasion. 

15.  A  witness  may  be  impeached  on  his  statements  made 
out  of  court.  Before  the  credibility  of  a  witness  can  be  assailed 
by  something  he  may  have  said  elsewhere,  the  witness  must  be 
first  inquired  of  concerning  it,  and  the  time,  place  and  person 
involved  must  be  called  to  his  attention. 

1  6.     The  prosecution  may  show  by  other  witnesses,  that  the 


THE  PENAL  CODE  55 

witness  for  defendant  had  given  a  different  account  of  what  had 
occurred  at  the  time,  from  that  testified  to  on  the  stand. 

I  7.  The  testimony  of  a  witness,  taken  in  writing  by  a  mag- 
istrate, may  be  used  to  show  contradictory  statements  made  by 
him,  but  for  no  other  purpose. 

18.  A  member  of  the  grand  jury  may  be  called  to  contra- 
dict him.  They  may  testify  that  the  person  was  not  a  witness 
before  them.  A  witness  may  be  contradicted  by  a  person  who 
heard  him  testify  on  a  former  hearing.  When  necessary  to  pro- 
mote juctice,  a  grand  juror  may  be  compelled  to  testify  what 
the  witness  swore  to  before  them. 

19.  No  inference  prejudicial  to  the  veracity  of  witnesses 
can  be  drawn  from  the  fact  that  they  did  not  testify  before  the 
committing  magistrate.  A  witness  cannot  be  impeached  by 
proving  that  he  has  been  guilty  of  stealing. 

20.  Permitting  a  cross-examiner  to  recall  a  witness  to  fur- 
ther cross  examine  him,  is  in  the  discretion  of  the  court. 

2 1 .  The  court  has  a  right  to  control  the  examination  of 
witnesses,  and  may  refuse  to  allow  an  improper  question  to  be 
asked. 

22.  When  a  witness  appears  adverse  in  interest  to  the 
party  calling  him,  the  admission  of  leading  questions  is  in  the 
discretion  of  the  court.  An  interrogatory  by  the  judge  is  not  a 
leading  question.  The  court  has  discretion  to  allow  witnesses 
to  be  examined  at  any  time  before  verdict. 

23.  A  witness  cannot  be  discredited  by  proof  of  particular 
acts  not  directly  involved  in  the  issue,  but  he  may  be  discredited 
by  showing  his  bad  .moral  character. 

24.  When  a  defendant  testifies  in  his  own  behalf,  he  puts 
his  general  character  and  credibility  in  issue  and  may  be  im- 
peached the  same  as  any  other  witness. 

25.  A  defendant  in  a  criminal  action  or  proceeding  cannot 
be  compelled  to  be  a  witness  against  himself;  but  if  he  offer 
himself  as  a  witness,  he  may  be  cross-examined  by  the  counsel 
for  the  people  as  to  all  matters  about  which  he  was  examined  in 
chief.     His  neglect  or  refusal  to  be  a  witness  cannot  in  any  man- 


56  THE  PENAL  CODE 

ner  prejudice  him,  nor  be  used  against  him  on  the  trial   or  pro- 
ceeding. 

26.  A  defendant  has  a  right  to  testify  on  his  own  behalf. 
The  defendant  need  not  testify  in  his  own  behalf,  and  no  infer- 
ence of  guilty  can  be  drawn  from  his  failure  to  do  so. 


Title  XI 


OF  PROCEEDINGS  IN  JUSTICES'  AND  POLICE  COURTS  AND 
APPEALS  TO  SUPERIOR  COURTS 

Chapter    I 

PROCEEDINGS  IN  JUSTICES'  AND  POLICE  COURTS 

1.  All  proceedings  and  actions  before  a  Justices'  or  Police 
Court,  for  a  public  offense  of  which  such  courts  have  jurisdiction, 
must  be  commenced  by  complaint  under  oath,  setting  forth  the 
offense  charged,  with  such  particulars  of  time,  place,  person  and 
property,  as  to  enable  the  defendant  to  understand  distinctly  the 
character  of  the  offense  complained  of,  and  to  answer  the  com- 
plaint. 

2.  If  the  justice  of  the  peace,  or  police  justice,  is  satisfied 
therefrom  that  the  offense  complained  of  has  deen  committed, 
he  must  issue  a  warrant  of  arrest. 

3.  A  docket  must  be  kept  by  the  justice  of  the  peace  or 
police  justice,  or  by  the  clerk  of  the  courts  held  by  them,  if  there 
is  one,  in  which  must  be  entered  each  action,  and  the  proceedings 
of  the  court  therein. 

4.  Upon  a  plea  other  than  a  plea  of  guilty,  if  the  parties 
waive  a  trial  by  jury,  and  an  adjournment  or  change  of  venue  is 
not  granted,  the  court  must  proceed  to  try  the  case. 

5.  Before  the  commencement  of  a  trial  in  any  of  the  courts, 
either  party  may,  upon  good  cause  shown,  have  a  reason- 
able postponement  thereof. 

6.  The  defendant  must  be  personally  present  before  the 
trial  can  proceed. 


THE  PENAL  CODF  ;  57  ;    . 

7.  A  trial  by  jury  may  be  waived  by  the  consent  of  both 
parties  expressed  in  open  court  and  entered  in  the  docket.  The 
information  of  the  jury  is  provided  for  in  chapter  cne,  title  three, 
part  one,  of  the  Code  of  Civil  Procedure, 

8.  The  court  must  administer  to  the  juiy  the  following  cath: 
"You  do  swear  that  you  will  well  and  truly  try  this  issue  between 
the  people  of  the  Preston  School  of  Industry  and  A.  B.,  the  de- 
fendant, and  a  true  verdict  render  according  to  the  evidence. 

9.  After  the  jury  are  sworn,  they  must  sit  together  and  hear 
the  proofs  and  allegations  of  the  parties,  which  must  be  deliver- 
ed in  public,  and  in  the  presence  of  the  defendant. 

1  0.  The  court  must  decide  all  questions  of  law  which  may 
arise  in  the  course  of  a  trial,  but  can  give  no  charge  with  respect 
to  matters  of  fact. 

1  1 .  The  verdict  of  the  jury  must  in  all  cases  be  general. 
When  the  jury  have  agreed  upon  their  verdict,  they  must  deliver 
it  publicly  to  the  court,  who  must  enter,  or  cause  to  be  entered, 
in  the  minutes. 

1  2.  The  jury  cannot  be  discharged  after  the  cause  is  sub- 
mitted to  them,  until  they  have  agreed  upon  and  rendered  their 
verdict,  unless  for  good  cause  the  court  sooner  discharges  them. 

13.  When  the  defendant  pleads  guilty,  or  is  convicted, 
either  by  the  court  or  by  a  jury,  the  court  must  render  judgment 
thereon  of  fine  or  imprisonment,  or  both,  as  the  case  may  be. 


Title  XII 


OF  SPECIAL  PROCEEDINGS  OF  A  CRIMINAL  NATURE 

Chapter  III 

OF  SEARCH  WARRANTS 

1 .  A  search  warrant  is  an  order  in  writing,  in  the  name  of 
the  people,  signed  by  a  magistrate,  directed  to  a  peace  officer, 
commanding  him  to  seach  for  personal  property,  and  bring  it  be- 
fore the  magistrate. 


56  THE  PENAL  CODE 

2.     It  may  be  issued  upon  either  of  the  following  grounds  ; 

(a)  When  the  property  was  stolen  or  embezzled ;  in 
which  case  it  may  be  taken  on  the  warrant,  from  any 
place  in  which  it  is  concealed,  or  from  the  possessio  n 
of  the  person  by  whom  it  was  stolen  or  embezzled , 
or  from  any  person  in  whose  possession  it  may  be. 

(b)  When  it  was  used  as  the  means  of  committing  a  fel- 
ony, in  which  case  it  may  be  taken  on  the  warrant , 
from  the  place  in  which  it  is  concealed,  or  from  the 
possession  of  the  person  by  whom  it  was  used  in  th  e 
commission  of  the  offense,  or  from  any  person  in 
whose  possession  it  may  be. 

(c)  When  it  is  in  the  possession  of  any  person  with  the 
intent  to  use  it  as  the  means  of  committing  a  public 
offense,  or  in  the  possession  of  another  to  whom  he 
may  have  delivered  it  for  the  purpose  of  concealing 
it  or  preventing  its  being  discovered ;  in  which  case 
it  may  be  taken  on  the  warrant  from  such  person,  or 
from  any  place  occupied  by  him  or  under  his  con- 
trol, or  from  the  possession  of  the  person  to  whom  he 
may  have  so  delivered  it. 

3.  A  search  warrant  cannot  be  issued  but  upon  probable 
^cause,  supported  by  affidavit,  naming  or  describing  the  person 

and   particularly    describing    the  property  and  the  place   to  be 
searched. 

4.  When  the  officer  takes  property  under  the  warrant,  he 
must  give  a  receipt  for  the  property  taken  (specifying  it  in  detail) 
to  the  person  from  whom  it  was  taken  by  him,  or  in  whose  pos- 
session it  was  found;  or  in  the  absence  of  any  person,  he  must 
leave  it  in  the  place  where  he  found  the  property. 

5.  The  officer  must  forthwith  return  the  warrant  to  the 
magistrate,  and  deliver  to  him  a  written  inventory  of  the  proper- 
ty taken,  made  publicly  or  in  the  presence  of  the  person  whose 
possession  it  was  taken  from. 

6.  The  magistrate  must  thereupon,  if  required,  deliver  a 
copy  of  the  inventory  to  the  person  from  whose  possession  the 
property  was  taken,  and  to  the  applicant  for  the  warrant. 


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